Admiral Taverns (Cygnet) Ltd v Daniel and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jacob,Lord Justice Tuckey |
| Judgment Date | 25 November 2008 |
| Neutral Citation | [2008] EWCA Civ 1501 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 November 2008 |
| Docket Number | Case No: B5/2008/2154 |
[2008] EWCA Civ 1501
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MR JUSTICE TEARE)
Lord Justice Tuckey
Lord Justice Jacob And
Sir William Aldous
Case No: B5/2008/2154
Mr P Petts (instructed by Ford & Warren) appeared on behalf of the Appellant.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
Lord Justice Aldous:
The appellant, Admiral Taverns (Cygnet) Ltd, is the head lessee of a property called Castle Tavern. That property was sub-let to a Mr Stephen Shaw, who it is believed has gone to Canada. In any case his lease expired on 21 December 2007. The appellants had decided to assign the head lease. To protect the property, they entered into a caretaking agreement with the second respondent, Tracy Daly. Tracy Daly is the partner of the other respondent, Craig Daniel. Clause 4 of that agreement stated:
“The Company appoints the caretaker to provide a caretaking service in respect of the above premises for the term in return for the payment. It is the intention of this agreement that a contract for service is created and no employee status between the parties exists.”
Clause 6.6 was in these terms:
“The Caretaker will open the premises to allow potential purchasers or any agent of the Company requiring access to view the premises on being given 24 hours notice.”
Mr Williams, who is the business development manager of the appellants, explained in his witness statement what happened and what led to these proceedings. He said that in February 2008 he notified the respondents that the appellants intended to sell the property and that completion of the sale was set for 4 April 2008. He advised them that they would be required to give up vacant possession of the property on that date. On 12 April he visited the site to take back vacant possession. He met several colleagues of the proposed purchasers who had already arrived at the property. When they got there they found it was locked. He called the second respondent on his mobile phone to ask him to open up the property and let them in. The second respondent refused and said that he was not going to give up possession as he had been promised the grant of a lease.
On 14 April 2008 solicitors acting for the appellants wrote to Tracy Daly, confirming termination of the caretaking agreement and requiring possession. Possession was not given up and proceedings were issued in the London County Court on 16 April 2008. The hearing was fixed for 29 April 2008. Craig Daniel rang the court saying he was going to be late. By 11.00 neither defendant had arrived and HHJ Gibson proceeded to hear the claim. He went on to make an order for possession forthwith. At that stage Mr Daniel arrived at court. He presented to the court a lease of the property purportedly granted to him and a defence asserting that he was a lessee. The judge declined to vary the order. He described the lease as “as genuine as a four-pound note”.
A warrant of possession was issued on the same day. It was due to be executed on 18 June 2008. A Notice of Appeal was lodged out of time on 21 May. Included with it was an application for a stay pending appeal. Teare J granted the stay without a hearing on 17 June 2008. His reasons were:
“The decision of HHJ Gibson was taken in the absence of the Defendant/Applicant notwithstanding that the Defendant/Applicant had informed the Court Office of his likely late arrival and had been reassured by the Court staff the case would not be called on before he arrived.
2. There is evidence that the Defendant/Applicant had the possession of the property under some form of agreement since 7 January 2008 and had spent money refurbishing the property. The Claimant/Respondent appears to say that the form of agreement relied upon is a forgery. However, there does not appear to have been a judicial determination of that issue, notwithstanding the comments made by the judge after he made his ruling and the Defendant/Applicant had arrived at court.
3. I consider that there should be a stay of execution and a warrant for possession pending the determination of the application for permission to appeal. Whether it is continued thereafter would be a matter for the Judge deciding the application for permission to appeal.”
I need not read the other reasons.
The appellant sought to set aside the stay and that application came before the judge on 10 July 2008. The respondents did not appear. The judge, after hearing counsel for the appellants, set aside the stay. The respondents contacted the court to explain why they had not attended. That resulted in Teare J giving them an opportunity to make submissions. The result was that on 21 July Teare J set aside his order and reinstated the stay until the appeal was determined. The issue before this court is as to whether that order was correct.
Before coming to the judgment of the judge it is appropriate to look at the law, starting with the Housing Act 1980. That was an act which inter alia was to :
“Restrict the discretion of the court in making orders for possession of land”
Section 89 is in this form:
“89. Restriction on discretion of the court in making orders for possession of land.
(1) Where a court makes an order for the possession of any land in a case not falling within the exceptions mentioned in subsection (2) below, the giving up of possession shall not be postponed (whether by the order or any variation, suspension or stay of execution) to a date later than 14 days after the making of the order, unless it appears to the court that exceptional hardship would be caused by requiring possession to be given up by that date; and shall not in any event be postponed to a date later than six weeks after the making of the order.
2. The restrictions in subsection (1) above do not apply if —
(a) the order is made in an action by a mortgagee for possession; or
(b) the order is made in an action for forfeiture of a lease; or
(c) the court have power to make the order only if it considered it reasonable to make it;
(d) the order relates to a dwelling house which is the subject of a restricted contract (within the meaning of Section 19 of the 1977 Act); or (e) the order is made in proceedings brought as mentioned in Section 88(2) above.”
It is important to realise that the exceptions in subsection (2) do not include cases relating to squatters, nor those relating to assured shorthold tenancies which have come to an end.
Before coming to the cases which have considered the construction of that section, it is important to have in mind the common law as explained by Lord Denning in the well known case of McPhail v Persons Unknown [1973] 1 ChD 447. In that case Lord Denning explained the law as to squatters. At page 456 he dealt with the remedy of self-help. He said this:
“Now I would say this at once about squatters. The owner is not required to go to the courts to obtain possession. He is entitled if he so desires to take the remedy into his own hands. He can go in himself and turn them out without the aid of the courts of law. This is not a counsel to be recommended because of the disturbance which might follow but the legality of it is beyond question.”
Lord Denning went on to consider the remedy by action. At page 457F he said:
“Seeing that the owner can take possession at once without the help of the courts, it is plain that, when he does come to the courts, he should not be in any worse position. The courts should give him possession at once, else he would be tempted to do it himself. So the courts of common law never suspended the order for possession”.
Lord Denning next considered the position of a tenant when the tenancy had come to an end. At page 459H he said:
“In my opinion, therefore, when a tenancy has come to an end the landlord is not entitled to take possession except by order of the court: and, on making the order, the court has power to fix a date for possession. How then is this power to be exercised? It is a matter for the discretion of the court. But, in the ordinary way, where the defendant has no statutory right to remain, the usual order is from four to six weeks”
His conclusion on the case came at page 460. He said at E
“My conclusion is that, when the owner of the house comes to the court and asks for an order to recover possession against squatters, the court must give him the order he asks. It has no discretion to suspend the order. But, whilst this is the law, I trust that owners will act with consideration and kindness in the enforcing of it —remembering the plight which the homeless are in”.
In that case the order was suspended pending the appeal.
Of course McPhail was before the passing of the Housing Act 1980 but as stated by Lord Denning the law has been clear for many years, namely that a court has no right to stay an order for possession against squatters.
I next turn to the three cases where construction of section 89 has been considered. The first is a case decided by Harman J, namely Bain v The Church Commissioners for England [1989] 1 WLR 24. In that case Harman J had concluded at an earlier hearing that the Church Commissioners were entitled to possession of the premises. In his second judgment he had to decide what the order should be; in particular whether the order for possession should be stayed pending appeal to the Court of Appeal. At page 26 he said, after citing section 89(1) of the 1980 Act:
“The phrases when just read like that are in the most general terms —'a court...
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